Study Finds Questioning of Nominees to Be Useful

Monday

Jun 28, 2010 at 4:17 AM

A new study shows that Supreme Court confirmation hearings often address real substance and illuminate the spirit of their times.

ADAM LIPTAK

WASHINGTON — Ever since nominees to the Supreme Court started to subject themselves to comprehensive grilling in 1939, their confirmation hearings have been dismissed by the legal elite as an empty charade.

A 35-year-old lawyer named William H. Rehnquist, who would go on to become chief justice of the United States, said as much in The Harvard Law Record in 1959. Four decades later, a 35-year-old law professor named Elena Kagan, whose confirmation hearings start Monday, agreed in The University of Chicago Law Review.

But a new study, based on an analysis of every question asked and every answer given at Supreme Court confirmation hearings in the last 70 years, shows that the hearings often address real substance, illuminate the spirit of their times and change with shifts in partisan alignments and the demographic characteristics of nominees.

The study also refutes the common mistaken belief that questions about abortion rights have played a dominant role in confirmation hearings since Roe v. Wade was decided in 1973. And it finds that female and minority nominees are questioned more closely than white male ones.

It is possible to make some predictions about the questions Ms. Kagan will face based on the study’s data, which track trends from the first unrestricted Supreme Court confirmation hearing, of Felix Frankfurter in 1939, through the latest one, of Sonia Sotomayor last summer.

“Kagan’s hearings are probably going to be dominated by civil rights issues and the Second Amendment,” said Paul M. Collins Jr., an assistant professor of political science at the University of North Texas and one of the study’s authors.

“We’re going to see her pressed very similarly to Sotomayor about judicial philosophy,” Professor Collins said, “especially by Republican senators, who have taken a kind of issue ownership of that issue. Republicans have won the rhetoric war. They own phrases like ‘judicial activism’ and ‘judicial restraint.’ ”

At her hearings, Justice Sotomayor often responded to questions about her judicial philosophy with a simple verbal formula, saying she would apply the law to the facts. Walter Dellinger, an acting solicitor general in the Clinton administration, said he hoped Ms. Kagan would give nuanced answers to such questions.

“It would be valuable to have a nominee talk more candidly and acknowledge that judging involves the exercise of judgment,” he said, “rather than just the application of mechanical logic.”

“The experience issue is likely to come up,” Ms. Brand said, referring to Ms. Kagan’s lack of judicial service and a career spent mostly in the government and academia. “Abortion always comes up. Then of course the Solomon Amendment,” a law concerning military recruiting that Ms. Kagan opposed as dean of Harvard Law School. “And gun rights.”

Not all questions yield answers, of course.

“There are a thousand ways to say nothing,” said the study’s other author, Lori A. Ringhand, an associate professor of law at the University of Georgia.

Still, a second recent study by two political scientists found that “the overall level of candor has actually been fairly high.”

Most nominees answer “between 60 and 70 percent of their questions in a fully forthcoming manner,” the study, by Dion Farganis of Elon University in North Carolina and Justin Wedeking of the University of Kentucky, concluded.

The confirmation hearing is in any event a constitutional dialogue between two branches, and a look at the topics on senators’ minds can provide insights whether or not nominees give candid answers. “This really is the way that people, through their elected representatives, are claiming ownership of constitutional meaning,” Professor Ringhand said.

Consider abortion.

Though Roe v. Wade, recognizing a constitutional right to abortion, was decided in 1973, the first questions concerning it and sexual privacy more generally did not arise until the 1981 confirmation hearings of Justice Sandra Day O’Connor. Discussion of abortion rights since then has accounted for only 5 percent of all dialogue between senators and nominees.

“Abortion as a hearing issue both took some time to gain traction and failed to dominate the hearings after it did,” the study found. “Racial and gender discrimination, speech and religious freedom and even non-abortion-related privacy have all played larger roles.”

Questions about the Second Amendment’s guarantee of the right to keep and bear arms also first surfaced at Justice O’Connor’s confirmation hearings. By last year, the issue had taken a central role.

Almost 9 percent of the dialogue at Sonia Sotomayor’s hearings concerned the Second Amendment, no doubt prompted in part by the Supreme Court’s 2008 decision recognizing an individual right to own guns.

The court will almost certainly hand down an important follow-up decision on Monday, meaning the issue will very probably play an important role in the Kagan hearings, too.

The five women and minority members who have served on the court — Justices O’Connor and Sotomayor (whom the study counted in both categories), and Justices Thurgood Marshall, Clarence Thomas and Ruth Bader Ginsburg — were asked more substantive question than nominees who were white men.

“Female and minority nominees are being pressed more on their judicial philosophies than white male nominees,” Professor Collins said. “There might be a concern that they would bring their unique backgrounds to the bench.”

Ms. Kagan is likely to get questions about her article in The University of Chicago Law Review, in which she celebrated the 1987 confirmation hearings of Robert H. Bork for their extensive exploration of his understanding of the Constitution.

“The ratio of posturing and hyperbole to substantive discussion was much lower than that to which the American citizenry has become accustomed,” Ms. Kagan wrote. But Judge Bork’s candor hurt him, and the Senate rejected his nomination.

Ms. Kagan may therefore wish to follow Chief Justice Rehnquist’s example with regard to her critique.

In 1959, a dozen years before his first confirmation hearings, to become an associate justice, Mr. Rehnquist complained that the 1957 confirmation hearings of Justice Charles Evans Whittaker had revealed nothing about his views on the pressing issues of the day, including racial segregation and communism.

Instead, the Senate Judiciary Committee learned, Mr. Rehnquist wrote, that Justice Whittaker had paid for some of his schooling with money made by trapping skunks and that “since he had been born in Kansas but now resided in Missouri, his nomination honored two states.”

The role of the Supreme Court is unique in the American judiciary, Mr. Rehnquist went on, since the Constitution means what the justices say it does. Given this, he said, “what could have been more important to the Senate than Mr. Justice Whittaker’s views on equal protection and due process?”

At his own confirmation hearing in 1971, Mr. Rehnquist largely disavowed his article.

“I think I did not fully appreciate,” he told the Senate Judiciary Committee, “the difficulty of the position that the nominee is in.”

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